Delhi District Court
Ps Bhajanpura vs . on 3 August, 2011
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGECUM
ADDITIONAL SESSIONS JUDGE : INCHARGENE DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 69/10
Unique Case ID No. 02402R0212542010
State
Vs.
1. Manoj @ Bona S/o Kailash Nath, R/o T230/A, Gali No.2, Gautam Puri,
Delhi.
2. Mohd. Jeishan S/o Mohd. Rafik, R/o K41, New Seelampur, Delhi.
3. Irfan @ Chhenu S/o Mirajuddin @ Lallu, R/o K227 New Seelampur, Delhi.
4. Afsar S/o Mohd. Usuf, R/o A366, Gali No.5/6, Chauhan Bangar, New
Seelampur, Delhi.
FIR No. 154/2010
PS Bhajanpura
U/s 302/34 IPC & 25/27/54/59 Arms Act.
Date of Institution : 30.07.2010
Date of Reserving for Order : 18.07.2011
Date of Pronouncement : 03.08.2011
J U D G E M E N T : Prosecution case emanates from the fact that on 31.03.2010 Vivek Sharma was present at the first floor of his house situated at C11/25, Yamuna Vihar and he heard three or four sounds like cracker and came downstairs. He saw one person lying in front of house No. C11/24. Some passersby informed S.C. No. 69/10 Page 1/37 2 him that the person lying had received bullet injuries. As such he informed at 100 number. On receipt of information, Constable Milap Chand reached at the spot. He took injured in a private car to GTB Hospital, where he was examined by the doctor, who declared him brought dead. On receipt of information, ASI Harmender Singh along with Constable Manoj went to the spot where they came to know that injured has been removed to GTB Hospital. As such he went to GTB Hospital and collected MLC of an unknown person, who was declared "brought dead". ASI Harmender Singh made endorsement on DD No.35A and got the case registered. Further investigation of the case was entrusted to Inspector C.K. Sharma, who reached at the spot. Crime team was called. Constable Shyam Lal took photographs of the spot while SI E.S. Yadav of Crime Team inspected the spot and gave his report. Five empty used cartridges, lead, blood etc were lying at the spot, which were taken into possession by Inspector C.K. Sharma. One diary was recovered from search of the dead body, on which mobile phone bearing No. 9968295174, PS Seelampur was written. Inspector C.K. Sharma contacted on this mobile number and it transpired that it belongs to SI Shailender of PS Seelampur. SI Shailender was called at mortuary, GTB Hospital. He reached mortuary GTB Hospital and identified the dead body to be of Ajay, who was arrested by him in a case of NDPS Act in FIR No. 112/2000. Inspector C.K. Sharma prepared the inquest papers. Postmortem examination on the dead body was conducted by Dr. Meghali Kelkar, who gave her report and opined the cause S.C. No. 69/10 Page 2/37 3 of death as a result of antemortem injuries to cervical spine cord produced by projectile of a fire arm.
It is further the case of the prosecution that on 14.04.2010 on receipt of information, police officials went to Main Road, NooreIlahi DTC Depot and accused Manoj and Mohd. Jishan came on a motorcycle bearing No. DL1SR6695, make Hero Honda Hunk from the side of NooreIllahi. They were apprehended. They could not produce ownership proof of the motorcycle and it was found that same was stolen from the area of Sita Ram Bazar, Valmiki Chopal, Delhi. Both acused persons made disclosure statement regarding commission of murder of Ajay by them along with their coaccused Afsar and Irfan. As such they were arrested in the present case. They also pointed out the place of incident. Thereafter, at their instance on 15.04.2010, accused Irfan was apprehended from double storey quarters of Seelampur, Brahmpuri Main Road and on his search one loaded pistol having three live cartridges were recovered from his right dub. He was arrested. He also made disclosure statement. On 24.04.2010, accused Afsar was arrested by Inspector Shyamji Srivastava in FIR No. 90/2010, who made disclosure statement regarding his involvement in this case. As such he was formally arrested by Inspector Hans Raj Thakran. He made disclosure statement and got recovered one country made katta and two live cartridges, which were taken into possession. During the course of investigation, exhibits were sent to FSL. After completing investigation, charge S.C. No. 69/10 Page 3/37 4 sheet was submitted against all the accused persons.
2. Charge for offence punishable under section 302 read with section 34 IPC was framed against all the accused persons, besides separate charges for offence punishable under section 25 Arms Act were framed against accused Irfan @ Chhenu and Afsar, to which charges accused persons pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Rahul Goswami (PW1), Vivek Verma (PW2), Constable Shyam Lal (PW3), SI E.S. Yadav (PW4), ASI Inder Pal (PW5), SI Shailender (PW6), Constable Milap Chand (PW7), ASI Shri Ram (PW8), Dr. Sushma (PW9), Constable Sunil (PW10), Dr. Meghali Kelker (PW11), ASI Raghu Raj (PW12), Constable Manoj (PW13), HC Nathu (PW14), Constable Hawa Singh (PW15), SI Girish (PW16), Inspector Ramesh Kumar (PW17), ASI Harmender Singh (PW18), Inspector Hans Raj Thakran (PW19), R. Suresh, Sr. Scientific officer (PW20), ASI Shamsher Singh (PW21), Inspector C.K. Sharma (PW22), HC Yashbir Singh (PW23) and Inspector Shyamji Srivastava (PW24) in the case.
4. PW1 Rahul Goswami was having a tea shop near Mosque at corner of New Seelampur. He was called at PS Bhajanpura, where he was shown photograph of deceased, whom he identified as he used to come at his shop in order to take tea.
S.C. No. 69/10 Page 4/37
5 PW2 Vivek Verma saw that one person was lying in front of House No. C11/24. He informed police at 100 number. Police officials reached at the spot and injured was taken to hospital in a private car belonging to resident nearby that house.
PW3 Constable Shyam Lal took photographs of the spot from different angles. He proved negatives as well as developed photographs as Ex.PW3/115 and Ex.PW3/1630 respectively.
PW4 SI E.S. Yadav inspected the spot and prepared his report Ex.PW4/A. He handed over the said report to the investigating officer.
PW5 ASI Inder Pal delivered special reports to the area Metropolitan Magistrate and other Sr. Police Officers.
PW6 SI Shailender identified dead body of deceased Ajay Kumar at mortuary GTB Hospital as the deceased was arrested by him in case FIR No. 112/09, PS Seelampur, U/s 21 NDPS Act.
PW7 Constable Milap Chand reached at Block No. C11, Yamuna Vihar, near Panchwati Restaurant and found a person was lying in front of H.No. C11/24 in injured condition. He removed the injured in a private car to GTB Hospital and got him admitted there.
PW8 ASI Shri Ram recorded FIR and proved copy of the same as Ex.PW8/A. PW9 Dr. Sushma proved report of Dr. Irfan Rehman as Ex.PW9/A, S.C. No. 69/10 Page 5/37 6 who had medically examined one unknown person brought by Constable Milab Chand.
PW10 Constable Sunil deposed about arrest of accused Afsar. PW11 Dr. Meghali Kelkar conducted postrmotem on the dead body of deceased Ajay. She proved detailed postmortem report as Ex.PW11/A. PW12 ASI Raghu Raj unfolded about arrest of accused Manoj @ Bona and Zeeshan. He detailed those very investigative steps, which took place in his presence.
PW13 Constable Manoj took tehrir to PS and got the case registered.
PW14 HC Nathu joined investigation of the case on 14.04.2010. He detailed those very investigative steps, which took place in his presence.
PW15 Constable Hawa Singh deposited one sealed parcel sealed with seal of M.K at FSL Rohini vide RC No.55/21 on 03.06.2010. On 04.06.2010, he deposited eleven sealed pullandas vide RC No.58/21 and RC No. 59/21 at FSL Rohini.
PW16 SI Girish joined investigation of the case on 01.04.2010, 07.04.2010, 14.04.2010 and 15.04.2010 with Inspector C.K. Sharma. On 22.04.2010, he also joined investigation with Inspector Hans Raj Thakran and HC Abdul Raheem. He detailed those very investigative steps which took place in his presence.
S.C. No. 69/10 Page 6/37
7 PW17 Inspector Ramesh Kumar placed on record the postmortem report of deceased Ajay as Inspector C.K. Sharma was on leave.
PW18 ASI Harmender Singh proved DD No.35A as Ex.PW18/A. He also proved endorsement on rukka as Ex.PW18/B. He detailed those very investigative steps, which took place in his presence.
PW19 Inspector Hans Raj Thakran unfolded about arrest of accused Afsar in case FIR No.90/10, who disclosed about his involvement in the case.
PW20 R. Suresh, Sr. Scientific Officer examined exhibits of the case and proved his ballistic report as Ex.PW20/A, Ex.PW20/B and Ex.PW20/C. PW21 ASI Shamsher Singh proved sanction u/s 39 Arms Act given by Addl. DCP, Sh. Milind Dumbere as Ex.PW21/A for prosecution of accused Afsar and Irfan under Arms Act.
PW22 Inspector C.K. Sharma conducted investigation of the case. He detailed those very investigative steps taken by him during the course of investigation.
PW23 HC Yashbir Singh was working as MHC(M). He received pullandas in the case on different dates and proved entries in that regard in register No.19 as Ex.PW23/A, Ex.PW23/B, Ex.PW23/C, Ex.PW23/D, Ex.PW23/E and Ex.PW23/F. He also proved copy of RC No.55/21, 58/21 S.C. No. 69/10 Page 7/37 8 and 59/21 as Ex.PW23/G. PW24 Inspector Shyamji Srivastava deposed about arrest of accused Afsar in case FIR No.90/2010, u/s 452/336/506/34 IPC and 27 Arms Act. Accused Afsar was arrested vide arrest memo Ex.PW24/A in that case and his disclosure statement Ex.PW24/B was recorded.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 313 Cr.P.C. They had denied all the allegations levelled against them. Their case has been of denial simpliciter. They all claimed that they were lifted from their respective houses and falsely implicated in the case. They opted not to lead any evidence in their defence.
6. I have heard Sh. Ravinder Khandelwal, ld. Public Prosecutor for the State and Sh. S.N. Qureshi, Advocate for accused Afsar and Sh. R.K. Kochar, Advocate for remaining accused persons, and have perused the record.
7. It was submitted by the counsel for the accused that there is no eyewitness to the incident. The case is based on circumstantial evidence. Prosecution was relying upon the last seen evidence. However, except PW1 and PW2 there is no other witness in this regard and PW1 has not supported the case of the prosecution and PW2 does not depose anything against the accused persons. Further more, it was submitted that no S.C. No. 69/10 Page 8/37 9 recovery was effected from accused Manoj and Jishan. As regards accused Irfan, one pistol and three live cartridges are alleged to have been recovered from his possession. However, the same does not connect him with the crime, inasmuch as, five empty cartridges are alleged to have been recovered from the spot out of which four did not tally. Only one tallied with the weapon recovered. Even that does not prove that murder was committed with that weapon. Planting of cartridge at the spot cannot ruled out, which is clear from the statement of PW7 Constable Milap Chand, who was the first person to go to spot and deposed that he did not see any pistol, revolver or cartridge over there. Even as regards the accused Afsar, it was submitted that although country made katta and two live cartridges were alleged to have been recovered at his instance, but even that does not connect him with the crime. Even the recovery was doubtful, inasmuch as, second disclosure statement of this accused Afsar was alleged to have been recorded on the basis of which recovery was effected. However, this disclosure statement is undated. No independent witness was joined either at the time of recording disclosure statement oar at the time of recovery. Under these circumstances, it was submitted that prosecution has failed to bring home guilt of the accused beyond reasonable doubt. As such accused persons are liable to be acquitted.
S.C. No. 69/10 Page 9/37
10
8. Per contra, it was submitted by ld. Prosecutor that it was the case based on circumstantial evidence. Initially accused Manoj and Jishan were apprehended while coming on a stolen motorcycle. They made disclosure statement and in pursuance to their disclosure statement, accused Irfan was arrested and from him country made pistol and three live cartridges were recovered. Thereafter, at the instance of these accused persons, accused Afsar was arrested and at his instance country made katta and two live cartridges were recovered. Three bullets were recovered from the dead body of deceased. When exhibits were sent to FSL, then it was opined that cartridge 7.65mm was fired through pistol 7.65mm which was recovered from the possession of accused Irfan. As such it was submitted that prosecution has been able to prove guilt of the accused beyond shadow of reasonable doubt. As such accused persons are liable to be convicted for offence alleged against them.
9. I have given my considerable thought to respective submissions of the ld. counsel for the parties and have carefully perused the record.
10. As per prosecution case, on 31.03.2010 at about 10.30/10.45pm, PW2 Vivek Verma, R/o C11/25, Yamuna Vihar, Delhi, was present at his house. He heard three or four sounds of crackers. On hearing the same, he went downstairs and saw oner person lying in front of house No. C11/24. He was informed by some passersby that the person had S.C. No. 69/10 Page 10/37 11 received some bullet injuries and then he come to know that sound which he heard was not sound of cracker, but was that of bullet. On the asking of persons present over there, he informed police at 100 number. On receipt of information, PW7 Constable Milap Chand went to spot and found one person lying in front of house No. 11/24 in injured condition. He was unconscious at that time. Bood was oozing out from his body. He removed the injured to hospital in a private car. The injured was examined by Dr. Irfan Rehman, who was working as Jr. Resident in GTB Hospital. He prepared his MLC Ex.PW9/A and declared the patient to be brought dead. On the basis of information sent by PW1 Vivek Verma, DD No. 35A Ex.PW8/A was recorded, which was entrusted to ASI Harmender Singh, who along with Constable Manoj went to the spot and came to know that injured has been removed to hospital. They went to hospital and collected MLC of an unknown person, who was declared brought dead. On the basis of DD entry, FIR was registered and investigation was entrusted to Inspector C.K. Sharma, who requested for conducting autopsy on the dead body of deceased. Postmortem was conducted by PW11 Dr. Meghali Kelkar, who gave her report Ex.PW11/A and opined that cause of death was as a result of antemortem injuries to cervical spine cord produced by projectile of a fire arm. From the dead body , one diary was recovered on which mobile phone number 9568295174 was written. S.C. No. 69/10 Page 11/37
12 Inspector C.K. Sharma contacted on the mobile phone number which belonged to SI Shailender, PS Seelampur. SI Shailender was called at mortuary and identified the dead body to be of Ajay. He was arrested by him in a case of NDPS Act. Under these circumstances, it stands proved that Ajay met homicidal death.
11. Now the question for consideration is as to who was responsible for this homicidal death. Admittedly there is no eyewitness to the incident. The present case rests on the circumstantial evidence. As regards the law regarding circumstantial evidence is concerned, it is well settled that when a case rests upon circumstantial evidence, the circumstances must be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In Hanumant Govind Nargundkar & Anrs. Vs. State of MP, AIR 1952 SC 343, the hon'ble Supreme Court held that 1) once the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty; 3) the circumstances should be of a conclusive nature and tendency; 4) they should exclude every possibility except the one to be proved; and 5) there S.C. No. 69/10 Page 12/37 13 must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
This view is reiterated in several judgements. Reference may be made to Mahmood Vs. State of UP (1976) 1 SCC 542; Gambhir Vs. State of Maharashtra, (1982) 2 SCC 351; Henry Westroller Roberts Vs. State of Assam, (1985) 3 SCC 291; Ashok Kumar Chatterjee Vs. State of M.P. 1989 Supp (1) SCC 560; Kishore Chand Vs. State of HP (1991) 1 SCC 286; Trimukh Maroti Kirkam vs. State of Maharastra, (2006) 10 SCC 681; Satni Bai vs. State of MP 2010 (1) JCC 290; (2010) 2 SCC 646, Brijpal @ Birju vs. State 2011 [2] JCC 985, Shakuntala vs. State 2011 [2] JCC 1001
12. In view these authoritative pronouncement while evaluating circumstantial evidence court has to adopt very cautious approach and has to see if links in the chain are completely pointing out to the guilt and every hypothesis of innocence is capable of being negated on evidence. Great care has to be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of S.C. No. 69/10 Page 13/37 14 all the facts so established must be consistent only with the hypothesis of guilt. The court must be satisfied : a. That the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt.
b. That the circumstance are of a determinative tendency unerringly pointing towards the guilt of the accused, and c. That the circumstances, taken collectively, are incapable of explanation on any reasonable hypotheses save that of the guilt sought to be proved against him.
13. This being the legal position, let us turn to the case in hand.
14. Prosecution in the instant case is basically relying upon : (1) Last seen evidence.
(2) Arrest of accused Manoj and Jishan and their pointing out the place of incident.
(3) Recovery of weapon of offence from accused Irfan and Afsar. (4) Expert evidence.
15. I shall deal with each and every circumstance one by one.
Last Seen Evidence :
16. In order to prove this piece of evidence, prosecution is basically relying upon the testimony of PW1 Rahul Goswami. This witness has S.C. No. 69/10 Page 14/37 15 deposed that he was having a tea shop near mosque at the corner of New Seelampur. Many persons used to come to take tea from his shop. The deceased Ajay also used to go to his shop in order to take tea. He was called by police of PS Bhajanpura. He was shown photograph of deceased and he told them that he used to come to his shp to take tea. However, he went on deposing that he does not know anything else about the case. Since the witness did not support the case of the proseution, he was crossexamined by the ld. prosecutor. In crossexamination he denied that accused Jishan, Manoj and Irfan were known to him or that these three accused persons are resident of New Seelampur or they used to reside near his shop. He also denied having knowledge that deceased Ajay was also resident of New Seelampur. According to him, he had opened his tea shop about one year ago, therefore he does not know anybody. He denied having stated to police that on 31.03.2010 at about 8pm, accused Manoj and Jishan came to his shop along with deceased Ajay for taking tea or that after taking tea, all the three persons went on a red colour motorcycle. He came to know about murder of Ajay in police station only. He denied that he has been threatened by the accused persons and due to scare he is not deposing against them. Under these circumstances, this witness has absolutely not supported the case of prosecution. There is no other witness to this last seen evidence. Under S.C. No. 69/10 Page 15/37 16 these circumstances keeping in view the fact that this witness has not supported the case of prosecution, prosecution has failed to establish "last seen evidence".
Arrest of Accused Manoj @ Bona and Jishan :
17. It is the case of the prosecution that on 14.04.2010, Inspector C.K. Sharma received an information that a person wanted in this case, who had murdered Ajay would be coming on a stolen motorcycle from the side of NooreIlahi and would be going towards Chand Bagh. On this information, he along with PW12 ASI Raghu Raj, HC Abdul Raheem, SI Girish Gothwal and Constable Nathu Singh went to Main Road Noore Ilahi DTC Depot, Delhi. At about 7.15pm two boys came on motorcycle bearing No. DL1SR6695, make Hero Honda Hunk, red colour from the side of NooreIlahi. On the pointing out of secret informer, both accused pesons were apprehended and they disclosed their names as Manoj and Jishan. Accused Manoj was driving the motorcycle while Jishan was sitting on the pillion seat. Accused persons failed to produce ownership of the motorcycle and it was revealed that motorcycle was stolen by them from Sita Ram Bazar, Valmiki Chopal, Delhi. On interrogation, both accused persons made their disclosure statement Ex.PW12/E and Ex.PW12/F. Thereupon they were arrested vide arrest memo Ex.PW12/A and Ex.PW12/B. On the pointing of accused Manoj and Jishan, pointing S.C. No. 69/10 Page 16/37 17 out memo Ex.PW12/G was prepared.
18. Disclosure statement was made by the accused persons, while they were in custody of the police under section 25 of the Evidence Act. The relevant provisions of law in this regard are incorporated under section 25, 26 and 27 of the Evidence Act, which are reproduced as under for the sake of convenience : "25. Confession to police officer not be proved. No confession made to a police officer shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him. No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
(Explanation. In the section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882.
27. How much of information received from accused may be proved Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, S.C. No. 69/10 Page 17/37 18 whether it amounts to a confession or not, as relates distinctly to the fact there by discovered may be proved."
19. From the perusal of the above provisions of law, it can be seen that a fact discovered on information supplied by the accused in his disclosure statement, is a relevant fact and that is only admissible in evidence if some thing new is discovered or recovered from the accused, which was not within the knowledge of the police before recording the disclosure statement of the accused.
20. The question arising in the present case has been considered in many cases already decided, some of which are as under : In Ram Kishore vs. State, reported as 1990 (2) Chandigarh Criminal Cases 205, it has been laid down that the prosecution has tried to built up their case on the disclosure statement of the accused which to our mind are of confessional nature. Section 27 of the Evidence Act lays down an exception to the rule that a confession made by an accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the condition prescribed by it. This section is by way of a proviso to both Sections 25 and 26. That is why this proviso has to be strictly construed and any relaxation must be sparingly allowed. The Courts have to take care that the purpose and object of Sections 25 and 26 are not rendered nugatory by any lax S.C. No. 69/10 Page 18/37 19 interpretation. The difficulty, however, great of proving that a fact discovered on information supplied by the accused is a relevant fact, can afford no justification for reading into the section something that is no there and admitting in an evidence a confession barred by section 25.
21. In Vinod Kumar & Anr. vs. State, reported as 1990 (2) Chandigarh Criminal Cases 211, a Division Bench of Hon'ble Court held that under Section 27 of the Evidence Act only that part of the statement of accused made to the police could be admissible in evidence which had led to discovery of a particular fact. In the present case, disclosure statement did not lead to the recovery of the weapon. The place of the occurrence was already known to the police before recording of the disclosure statement and thus the pointing out of the place of occurrence by accused Suresh and the memo prepared in that respect was not admissible in evidence.
22. In Mangal Singh vs. State, reported as 1995 (1) Chandigarh Criminal Cases 45, Hon'ble Court was of the view that where the information does not relate distinctly to the fact thereby discovered the admissibility of the disclosure statement of the appellant is not legally tenable under Section 27 of the Evidence Act.
23. In Jaiveer vs. State, reported as 1995 (2) Chandigarh Criminal Cases 422, a Division Bench had laid down that the disclosure statement S.C. No. 69/10 Page 19/37 20 of the accused is not at all admissible in evidence where it has not led to any discovery of any fact which was not known to the investigating officer also under section 27 of the Evidence Act.
24. Again in Virender Kumar Yadav vs. State, reported as 1995 (3) Chandigarh Criminal Cases 236, it has been held that the confessional statement of accused which has not led to any discovery and any material fact was totally inadmissible in evidence under section 27 of the Evidence Act.
25. The ration decidendi of all these cases is that only that part of the statement made by an accused to the police officer is admissible in evidence which led to discovery of a particular fact. In the instant case, absolutely no recovery has been effected at the instance of accused. As such disclosure statements made by them is inadmissible in evidence. For the same reason, mere pointing out memo prepared at their instance which does not lead to recovery is inadmissible in evidence.
26. As regards the fact that both accused persons pointed out the place of incident, a perusal of pointing out memo Ex.PW2/G goes to show that both accused persons, namely, Manoj and Jishan jointly pointed out the place of incident. Under section 8 of Evidence Act, conduct of accused becomes admissible unless that conduct amount to some statement which is hit by section 25 of the Evidence Act. However, keeping in view the fact S.C. No. 69/10 Page 20/37 21 that both accused Manoj and Jishan took police party to the place of occurrence, it is not plausible to hold as to which of the accused pointed out the place of occurrence. Therefore, this piece of evidence is not admissible against any of the accused persons. Moreover, place of incident was already in the knowledge of police official, and therefore even otherwise it did not lead to discovery of any fact. It was admitted by the prosecution witnesses that in pursuance to the disclosure statement of both these accused, no recovery was effected.
Arrest of accused Irfan and Afsar and recovery of weapon of offence as well as Expert Evidence :
27. It is the case of the prosecution that on 15.04.2010, Inspector C.K. Sharma along with SI Girish Gothwal, HC Abdul Raheem, Constable Nathu Singh and ASI Raghu Raj went to double storey quarters at Seelampur, Bhajanpura Main Road. At the instance of accused Manoj and Jishan, accused Irfan was apprehended, who was sitting on a motorcycle bearing No. DL4SAF5699 make Bajaj Pulsar. On search of this accused, from his left dub one loaded pistol was recovered. On checking of the pistol, three live cartridges were recovered. Thereafter, remaining proceedings, viz, preparing sketch of pistol and live cartridges Ex.PW12/I, sealing pistol and three live cartridges in a cloth parcel with seal of CKS and taking the same into possession vide seizure memo Ex.PW12/J were S.C. No. 69/10 Page 21/37 22 conducted. He was arrested. He made disclosure statement Ex.PW12/N.
28. It is, further, the case of prosecution that on 21.04.2010 Inspector Shyamji Srivastava (PW24) arrested accused Afsar in FIR No. 90/10 under section 452/336/506/34 IPC and 27 Arms Act. He made disclosure statement Ex.PW24/B. Thereafter, on 22.04.2010 Inspector Hans Raj Thakaran (PW19) along with Constable Sunil (PW10) went to PS Jafarabad. He formally arrested him in this case vide arrest memo Ex.PW10/A. Afsar made disclosure statement Ex.PW10/B, stating therein that he had hidden the katta, which was used by him in the murder of Ajay in his house. His police remand was taken for one day and thereafter at his instance pointing out memo Ex.PW16/C was prepared. However, accused again made supplementary statement Ex.PW19/A to the effect that he had kept the katta after keeping the same in a polythene in MTNL Park amongst bushes after digging soil. As such Inspector Hans Raj Thakaran along with SI Girish and HC Abdul Raheem reached in MTNL Park along with accused and accused Afsar took them to MTNL Park near C10 Blcok, Yamuna Vihar, and pointed towards the place near bushes and one polythene was recovered from ground after digging the soil. On checking of the said polythene, one country made katta and two live cartridges were recovered. Thereafter, proceedings viz preparing sketch of country made katta and live cartridges Ex.PW16/D and taking the same S.C. No. 69/10 Page 22/37 23 into possession vide seizure memo Ex.PW16/E etc were conducted.
29. It is further the case of the prosecution that all the exhibits were deposited with MHC(M) HC Yashbir Singh (PW23) and during the course of investigation, same were sent to FSL. Exhibits were examined by Sh. R. Suresh, Sr. Scientific Officer (PW20), who gave his detailed ballistic report Ex.PW20/A, Ex.PW20/B and Ex.PW20/C. When postmortem on the dead body was conducted by Dr. Meghali Kelkar, three bullets were recovered from the dead body and the same were also sent to FSL and were examined by the expert. As per report of Sh. R. Suresh on 04.06.2010, he received five sealed parcels, which were to the following effect : Parcel no1 was having two seal impressions CKS. It contained five 7.65 mm empty cartridge cases which were marked as Ex. EC1 to Ex. EC5. The persussion caps of Ex. EC4 and Ex. EC5 were found absent.
Parcel no.2 was having two seal impression of CKS and it contained one deformed bullet, which was marked as Ex.EB1.
Parcel no.3 was having one seal impression of CKS. It contained one deformed bullet which was marked as Ex. EB2.
Parcel no.X was having five seal impressions of CKS. It contained one improvised pistol 7.65 mm caliber and three 7.65mm cartridges. The improvised pistol was marked as Ex.F1 and the three cartridges were S.C. No. 69/10 Page 23/37 24 marked as Ex.A1 to Ex. A3.
Parcel no.Y was having 10 seals impressions of HR. It contained one country made pistol .315 inch bore and two 8mm / .315 inch cartridges. The country made pistol was marked as Ex. F2 and the two 8mm / .315 inch cartridges were marked as Ex. A4 and Ex. A5.
He examined exhibits and gave following ballistic report Ex.PW20/A. The results of the examination/opinion were as follows:
1. The improvised pistol 7.65 mm caliber marked exhibit 'F1' is designed to fire standard 7.65 mm cartridges. It is in working order in its present condition. Test fire conducted successfully.
2. The country made pistol .315" bore marked exhibit 'F2' is designed to fire a standard 8mm/.315" cartridge. It is in working order in its present condition. Test fire conducted successfully.
3. Three 7.65 mm cartridges marked exhibits 'A1' to 'A3' are live ones and can be fired through 7.65mm bore/caliber firearm.
4. The three 7.65 mm cartridges marked exhibits 'A1' to 'A3' were test fired through the improvised pistol 7.65mm caliber marked exhibit 'F1' above. The test fired cartridge cases and the recovered test bullets were marked as 'A1'/'TC1' to 'A3'/'TC3' and 'A1'/'TB1' to 'A3'/'TB3' respectively.
5. The 8mm /.315" cartridge marked exhibits 'A4' & 'A5' are live ones and can be fried through .315" bore/caliber firearm. S.C. No. 69/10 Page 24/37
25
6. The 8mm/.315" cartridges marked exhibit 'A4'&'A5' were test fire through the country made pistol .315" bore marked exhibit 'F1' above. The test fired cartridge cases and the recovered test bullets were marked as 'A4'/'TC4' to 'A5'/'TC5' and 'A4'/'TB4' to 'A5'/'TB5' respectively.
7. The exhibits marked 'EC1' to 'EC5' are 7.65 mm empty cartridge cases.
8. The deformed bullet marked exhibit 'EB1' corresponds to the bullet of standard 7.65mm cartridge.
9. The individual characteristics of striation marks present on the evidence bullet marked exhibit 'EB1' are insufficient for comparison and opinion whether it has been discharged through the improvised pistol of 7.65mm caliber marked exhibit 'F1' or not.
10. The deformed bullet marked exhibit 'EB2' corresponds to the bullet of standard 8mm/.315" cartridge.
11. The individual characteristics of striation marks present on the evidence bullet marked exhibit 'EB2' are insufficient for comparison and opinion whether it has been discharged through the country made pistol of .315" bore marked exhibit 'F2' or not.
12. The individual characteristics of firing pin marks and breech face marks present on the evidence cartridge case marked exhibit 'EC2' and on the test fired cartridge cases marked as 'TC1' to 'TC3' were S.C. No. 69/10 Page 25/37 26 examined & compared under the Comparison Microscope Model Leica DMC and were found identical. Hence, it is opined that the 7.65 mm cartridge case marked exhibit 'EC2' has been fired through the improvised pistol 7.65mm caliber marked exhibit 'F1'.
13. The individual characteristics of firing pin marks and breech face marks present on the evidence cartridge cases marked exhibits 'EC1' & 'EC3' and on the test fired cartridge cases marked as 'TC1 to 'TC3' were examined & compared under the Comparison Microscope Model Leica DMC and were not found identical. Hence, it is opined that the 7.65 mm cartridge cases marked exhibits 'EC1' & 'EC3' have not been fired through the improvised pistol 7.65mm caliber marked exhibit 'F1'
14. No further opinion can be given on the 7.65mm cartridge cases marked exhibits 'EC4' & 'EC5' due to absence of percussion caps.
He opined that the exhibits marked 'F1', 'F2' / 'A1' to 'A5', 'EC1' to EC5', 'EB1' & 'EB2' are firearms / ammunition as defined in the Arms Act, 1959.
30. On 23.08.2010, he received four sealed parcels from biological division at FSL, containing following articles : Parcel no.7 was having five seals impression of FSL B.D. Delhi. On opening of parcel no.7 the following articles were present.
(a) one kurta having two holes at front side left upper portion S.C. No. 69/10 Page 26/37 27 marked as 'H1' & 'H2' and one hole (torned from bottom to top of kurta) at back side left middle portion marked as 'H3' and the kurta was marked exhibit 'C1' in the laboratory. Dark brown stains were present on both front and back side of kurta marked exhibit 'C1'.
(b) One baniyan ( sleeveless ) having one hole at back side left middle portion marked as 'H4' ( torned) and the baniyan was marked exhibit 'C2' in the laboratory. Dark brown stains were present on both front and back side of baniyan marked exhibit 'C2'
(c) One underwear marked exhibit 'C3' in the laboratory. Parcel no.8 was having three seals impression of FSL B.D. Delhi. On opening of parcel no.8, it contained one glass container which contained one deformed bullet marked exhibit 'EB1' in the laboratory.
Parcel no.9 was having three seals impression of FSL B.D. Delhi. On opening of parcel no.9, it contained one glass container which contained one bullet marked exhibit 'EB2' in the laboratory.
Parcel no.10 was having three seals impression of FSL B.D. Delhi. On opening of parcel no.10, it contained one glass container which contained one bullet marked exhibit 'EB3' in the laboratory.
He examined exhibits and gave his report Ex.PW20/B. The results of the examination/opinion are as follows:
1. Three bullets marked exhibits 'EB1' to 'EB3' corresponds to the S.C. No. 69/10 Page 27/37 28 bullet of standard 7.65mm cartridge.
2. The individual characteristics of striation marks present on the evidence bullets marked exhibits 'EB1' to 'EB3' and on the test bullets marked as 'TB1' to 'TB3' fired through the improvised pistol 7.65mm caliber marked exhibit 'F1' in connection with case FIR no.154/10, PS Bhajanpura ( FSL case no.FSL 2010/F2415) were examined and compared under the Comparison Microscope Model Leica DMC and were not found identical. Hence, it was opined that the bullets marked exhibits 'EB1' to 'EB3' in the present case have not been discharged through the improvised pistol 7.65mm caliber marked exhibit 'F1' in connection with case FIR no.154/10, PS Bhajanpura ( Ex. PW20/A).
The remnants of case exhibits sent to laboratory for examination were sealed with the seal of 'FSL RS DELHI' and examination report on the exhibit parcel no.7 was sent to PS Bhajanpura later on after the completion of instrumental analysis.
He also gave report Ex.PW20/C in respect of report on parcel no.7, which was sent to PS Bhajanpura. No opinion could be given on the holes marked as H1, H2 and H3 on the kurta marked Ex.C1 and the hole marked as H4 on the baniyan marked Ex. C2 due to insufficient data. The said report dated is 14.01.2011.
31. It is the submission of ld. counsel for accused that firstly the S.C. No. 69/10 Page 28/37 29 recovery at the instance of accused Irfan and Afsar is not proved. Even otherwise the recovery simpliciter does not connect them with crime. Per contra, it is submission of ld. prosecutor that recovery of weapon of offence stands proved from testimony of prosecution witnesses and the report of FSL also connect them with crime. Therefore, it will be necessary first of all to ascertain whether any recovery was effected either from possession of accused Irfan or at the instance of accused Afsar and if so its effect.
32. As stated above, as per prosecution case when accused Irfan was arrested and his search was taken, then a country made pistol containing three live cartridges were recovered and when accused Afsar was arrested, he made disclosure statement and then got country made katta, two live cartridges recovered. At the outset, it may be mentioned that there is no independent witness either to apprehension of accused or to the recovery either from their possession/instance. There was no dearth of independent witnesses, inasmuch as, it is admitted by the police officials that place from where accused Irfan was apprehended was a thickly populated area and public persons were coming and going. However, no sincere efforts were made to join any independent person at the time of his apprehension. In 1999 Cr.L.J. (SC) 19, Sanspal Singh vs. State of Delhi; 1995 (3) CCC 252, Satish Kumar Vs. State; and 2011 (2) JCC S.C. No. 69/10 Page 29/37 30 (Narcotics) 98, Jaswinder Singh vs. State of Punjab, it was held that when independent persons are not joined at the time of recovery, the same becomes doubtful.
33. As regards accused Afsar, it is the case of the prosecution that he was initially arrested by Inspector Shyamji Srivastava and at that time he made disclosure statement. Thereafter, he was formally arrested in this case and he made disclosure statement Ex.PW10/B stating therein that he had hidden a katta, which was used by him in the murder of Ajay in his house. According to Inspector Hans Raj Thakaran, later on accused gave a supplementary statement Ex.PW19/A that he had kept the said katta after keeping the same in a polythene in MTNL Park amongst bushes after digging the soil. Firstly, this supplementary statement Ex.PW19/A is not without suspicion, inasmuch as, a perusal of this supplementary statement goes to show that it is undated. Moreover, it is not clear at what point of time this supplementary statement was made by him. There is one witness HC Abdul Raheem to this supplementary statement. However, HC Abdul Raheem has not been examined by the prosecution. As such there is solitary testimony of Inspector Hans Raj Thakaran, on which reliance can not be placed. Keeping in view the fact that it is not forthcoming at what point of time this supplementary statement was made by the accused as such this supplementary statement is shrouded with mystery. S.C. No. 69/10 Page 30/37
31
34. Moreover, according to Inspector Hans Raj Thakaran, in pursuance to this disclosure statement, he along with SI Girish and Abdul Raheem reached MTNL Park and accused pointed towards the soil near bushes and one polythene was recovered from the ground after taking the soil. On checking of polythene, one country made katta and two live cartridges were recovered. It has been admitted by all the police officials that alleged recovery was effected from public place, that is, MTNL Park, which is in the area of 30004000 sq. yards. The park is having jogging track and marriages used to be solemnized in the park and children used to play in the park during day time. It was also admitted that MTNL Office is situated just near the park and there is also office of BSES. Under these circumstances, there was no dearth of independent witnesses. Despite that no sincere efforts were made to join any independent witness to the recovery. Moreover, it was admitted by SI Girish Gothwal and Inspector Hans Raj Thakaran that the place of recovery is easily accessible to the public. That being so, it cannot even otherwise be said that recovery was effected from the place, which was in the exclusive knowledge of the accused. As such recovery of this weapon of offence at the instance of accused Afsar becomes doubtful.
35. Further more, according to testimony of some of the prosecution witnesses, viz, PW3, PW4, PW13, PW16, PW18 and PW22 five live S.C. No. 69/10 Page 31/37 32 cartridges were lying at the spot and one lead was lying at the spot while one lead was lying on the patri near wall. Same were lifted by Inspector C.K. Sharma, besides the blood, blood stained earth, normal earth control etc. However, it is also the case of prosecution that on receipt of information first of all Constable Milap Chand reached at the spot and he took injured to hospital in a private car. This witness has deposed in his crossexamination that when he reached at the spot, he did not see anything lying near the injured. He did not see any pistol, country made revolver or used fire cartridges at the spot. Under these circumstances, two versions are forthcoming regarding presence of five used cartridges at the spot. Moreover, as per report of Sh. R. Suresh, firing pin mark and breach face mark present on the cartridge mark Ex.EC2 and test fired cartridges marked as TC1 to TC3 were found identical and therefore it was opined that 7.65mm cartridge marked Ex.EC2 has been fired through improvised pistol 7.65mm caliber marked Ex.F1. No other exhibit enhance the case of prosecution. Even this report of ballistic expert does not establishes beyond reasonable doubt that it was accused Irfan, who had committed murdered of Ajay, inasmuch as, this piece of evidence at the most proves that pistol which was recovered from possession of accused Irfan was used in the commission of murder of Ajay, but not that it was he who committed his murder. 2009 (2) CCC (SC) 09, Abdul Wahid vs. State of S.C. No. 69/10 Page 32/37 33 Gujarat was a case under section 302/365/387/332/120B/201/202 IPC, 21(1)(i)(a) and 27 Arms Act. Murder of the deceased was said to have committed by the accused persons upon hatching conspiracy. It was observed by Hon'ble Apex Court that from the accused weapon of offence was recovered. Expert opined that bullet found in the body of deceased was fired from one of the weapon seized. That by itself cannot be made sole ground on which judgement of conviction under section 302 IPC could be recorded. There was no direct evidence. In absence of any other evidence connecting the accused with commission of crime by murder of deceased. It is not possible to hold the appellant on the basis of such slander evidence guilty of commission of offence punishable under section 302 IPC. In 2009 (4) CCC (SC) (203) Ram Singh vs. State of NCT of Delhi was also a case where only evidence which came against the accused was alleged recovery of pistol, which was tested by CFSL. Hon'ble High Court took the view that Scientific Evidence connect weapon with the crime and since weapon was recovered from appellant he can be convicted under section 307 IPC. The matter went to Hon'ble Apex Court and it was observed that where injured did no identify the appellant to be the person who had fired shot merely because appellant was owner of weapon that could not be ground to convict him in terms of section 307 IPC and appellant was acquitted of the charge. Facts are substantially S.C. No. 69/10 Page 33/37 34 similar in the instant case, inasmuch as, only piece of evidence against the accused Irfan is alleged recovery of pistol, which has been tested by the Ballistic Expert and it was opined that blood was fired from this pistol. In view of the aforesaid authoritative pronouncements, referred above, this fact itself cannot be made basis to convict the accused.
As regard recovery of country made katta at the instance of accused Afsar, the expert evidence could not connect the same with the murder of Ajay.
36. Result of the aforesaid discussion is that none of the circumstances relied upon by the prosecution establishes the guilt of the accused. Motive to commit crime has neither been alleged nor proved. In a case based on circumstantial evidence, motive to commit crime is one of the important piece of evidence. As held in the case of Surinder Pal Jain v. Delhi Administration (1993 Supp (3) SCC 681) that in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the Court on its guard to scrutinise the circumstance more carefully to ensure that suspicion and conjecture do not take place of legal proof. In the instant case also motive to commit murder on the part of accused persons is completely lacking.
S.C. No. 69/10 Page 34/37
35
37. The discussion made above clearly reveals that there was no eyewitness to the incident. The circumstances relied upon by the prosecution have not been proved. The circumstances set up by prosecution no doubt creates suspicion against the accused, but it is settled law that suspicion, howsoever grave, cannot take place of truth. It was held by Hon'ble High Court in 2011 IV AD (Delhi) 3, CRL.A. No. 863/2001, Shakuntala vs. State that the circumstances as propounded by the prosecution no doubt creates suspicion against accused/appellant, but suspicion by itself, howsoever strong it may be is not sufficient to take the place of proof and warrants a finding of guilt of the accused. Reference may also be made to State of Punjab vs. Bhajan Singh, (1975) 4 SCC 472; Mousam Singh Roy vs. State of West Bengal, 2003 VI AD (SC) 478 = (2003) 12 SCC 377, where relying on Sarvan Singh Ratan Singh vs. State of Punjab, AIR 1957 SC 637 it was held that there may be element of truth in the version of the prosecution against the accused and considering as whole the prosecution story may be true; but between "may be true" and "must be true" there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before the accused can be convicted. The Supreme Court had also held that a degree of agony and frustration may be caused to the families of the S.C. No. 69/10 Page 35/37 36 victim by the fact that a heinous crime may go unpunished, but then the law does not permit the Court to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of the acceptable evidence.
38. In the case of Gokaraju Venkataparase Raju v. State of A.P., (1993 Supp (4) SCC 191) also it was observed in para 10 that in cases depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take place of legal proof, but it has been indicated that the gravity of the offence cannot by itself outweigh so far as legal proof is concerned. It has further been observed that when the main link goes, the chain of circumstances gets snapped and other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this juncture, the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. At times it can be a case of 'may be true' and not 'must be true' and the same divides conjectures from sure conclusions.
39. Result of the aforesaid discussion is that since in the instant case, accused remained in the realm of suspicion, and this suspicion could not S.C. No. 69/10 Page 36/37 37 take place of proof, therefore in absence of establishing its case beyond reasonable doubt in order to implicate the accused persons, they are entitled to benefit of doubt. As such they are acquitted of the charge. In compliance of provisions of section 437A Cr.P.C., accused persons are directed to furnish a personal bond in the sum of Rs.10,000/ each with one surety each of the like amount, which shall remain in force a period of six months. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 3rd day of August, 2011. District JudgecumASJ, I/C Karkardooma Courts, Delhi.
S.C. No. 69/10 Page 37/37